Wakilii

Iddi Isabirye and Another v Electoral Commission and Another (Consolidated Election Petition Appeals Nos. 60 and 64 of 2021; Consolidated Election Petition Appeals Nos. 60 and 64 o

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Jurisdiction
Uganda
Case Type
Consolidated appeals from High Court decision allowing an election petition and setting aside the appellant's election
Decision
Appeals allowed; election of the 1st appellant restored and 1st appellant declared duly elected Member of Parliament

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeals. It held that the trial Judge failed to properly evaluate the evidence on the bribery allegations using an impermissible omnibus approach, neglecting the appellant's rebuttal and alibi evidence. On fresh evaluation, none of the bribery allegations or the alleged campaign donation were proved to the required standard. The certificate for two counsel was wrongly granted without assigning sound reasons. Although the Court upheld the finding that wrong returns were made, the election had not been set aside on that ground. The 1st appellant's election was restored and he was declared duly elected.

Outcome

Appeals allowed; election of the 1st appellant restored and 1st appellant declared duly elected Member of Parliament

Facts

The respondent, the 1st appellant Iddi Isabirye and five others contested the office of Member of Parliament for Bunya South Constituency, Mayuge District in elections conducted by the Electoral Commission on 14 January 2021. The 1st appellant was returned and gazetted as winner with 19,833 votes against the respondent's 14,364. The respondent petitioned the High Court at Jinja alleging the 1st appellant committed bribery and gave donations during campaigning, and that the Commission made wrong returns. The alleged bribery occurred at Waiswa Hussein's home (Ushs.100,000 and a saucepan), at a Bumwena B campaign rally (Ushs.400,000) and at Muwandike Scovia's home (Ushs.150,000), with a donation of Ushs.300,000 to a youth group. The 1st appellant denied the allegations and raised an alibi, supported by witnesses, that he was campaigning elsewhere on the relevant dates. The trial Judge found the offences proved, set aside the election and ordered fresh elections, prompting these consolidated appeals.

Issues

  1. Whether the respondent's notice of grounds for affirming the decision was in substance a disguised cross appeal and ought to be struck out.
  2. Whether grounds 3 of the 1st and 2nd appellants' appeals offended rule 86(1) of the Rules for being too general.
  3. Whether the trial Judge properly evaluated the evidence and correctly found that the 1st appellant committed the electoral offence of bribery.
  4. Whether the 1st appellant committed the illegal practice of giving a donation during the campaign period.
  5. Whether the trial Judge was justified in granting a certificate for two counsel without assigning reasons.
  6. Whether the trial Judge correctly found that the 2nd appellant and Returning Officer committed the offence of making wrong returns of an election and whether the election was set aside on that ground.

Orders

  • The 1st appellant's appeal succeeds on grounds 1, 2 and 4 and is allowed with 75% of the costs.
  • The decision and order of the High Court setting aside the election of the 1st appellant is set aside and the 1st appellant is declared the duly elected Member of Parliament for Bunya County South Constituency, Mayuge District.
  • Ground 3 of the 1st appellant's appeal is struck out for offending rule 86(1) of the Rules.
  • The 2nd appellant's appeal succeeds only on ground 4 and is allowed with 30% costs.
  • Grounds 1 and 2 of the 2nd appellant's appeal fail.
  • Ground 3 of the 2nd appellant's appeal is struck out for offending rule 86(1) of the Rules.
  • 70% of the costs of the 2nd appellant's appeal is awarded to the respondent.
  • Costs awarded to the respondent against the 2nd appellant are only for one counsel.
  • The respondent's notice of grounds for affirming the decision is expunged for being a disguised cross-appeal.

Rules and key headnotes

Electoral Law — Bribery — Evaluation of Evidence — Duty to Evaluate Rebuttal and Alibi Evidence
In evaluating bribery allegations in an election petition, a trial court must bring out and weigh the relevant evidence on each specific allegation, including the respondent's rebuttal and alibi evidence, rather than lumping affidavit references together in an omnibus manner; failure to do so amounts to improper evaluation of evidence.
Electoral Law — Bribery — Standard of Proof and Caution Over Partisan and Accomplice Witnesses
Each allegation of bribery must be proved on a balance of probabilities and to the satisfaction of the court by cogent evidence, with caution exercised over partisan and accomplice witnesses whose evidence requires corroboration from an independent source before it can be relied upon to nullify an election.
Electoral Law — Bribery — Proof That Recipients Were Registered Voters
An allegation of voter bribery must be proved by showing that the persons alleged to have been bribed are registered voters, conclusively established by evidence of their names on the national Voters' Register, not by voter slips or national identification.
Civil Procedure — Pleadings and Evidence — Deviation in Supporting Affidavit Without Amendment
An affidavit is evidence and not a pleading; where evidence deviates from the petition, the deviation is not fatal provided the adverse party understood the case against him and had an opportunity to respond, so a correction by supplementary affidavit may suffice without amending the petition where no prejudice is occasioned.
Civil Procedure — Memorandum of Appeal — Generality of Grounds Under Rule 86(1)
A ground of appeal that fails to specify the particular contradictions, inconsistencies or evidence complained of is too general and offends rule 86(1) of the Court of Appeal Rules and will be struck out.
Civil Procedure — Costs — Certificate for Two Counsel — Requirement of Sound Reasons
A certificate of costs for more than one counsel must be supported by sound reasons such as the complexity, importance or difficulty of the case, assessed individually under regulation 41 of the Advocates (Remuneration and Taxation of Costs) Rules, and cannot be granted as a matter of course merely because election petitions are inherently important.
Electoral Law — Grounds for Setting Aside Election — Distinction Between s.61(1)(c) and s.78(a) PEA
The offence of making wrong returns of an election under section 78(a) of the Parliamentary Elections Act is directed at election officers and is not a ground for setting aside an election; an election may only be set aside under section 61(1)(c) for an illegal practice or offence committed by the candidate personally or with his knowledge, consent or approval.

Legislation cited (25)

Cases cited (42)

  • Akol Hellen Odeke v Okodel Umar (Election Petition Appeal No. 6 of 2020)
  • Akurut Violet Adome v Emorut Simon Peter (Election Petition Appeal No. 40 of 2016)
  • Ssematimba Peter and NCHE v Sekigozi Stephen (Election Petition No. 8 and 10 of 2016)
  • Kasta Hussein Bukenya v Bukenya Balibaseka Gilbert and Another (Election Petition No. 29 of 2011)
  • Kamba Saleh v Namuyangu Jennifer Byakatonda (Election Petition Appeal No. 27 of 2011)
  • Ernest Kiiza v Kabakumba Labwoni Matsiko (Election Petition Appeal No. 44 of 2016)
  • Mujuni Vicent Kyamadidi v Charles Ngabirano and Electoral Commission (Election Petition Appeal No. 84 of 2016)
  • Alfred Tajar v Uganda (Criminal Appeal No. 167 of 1969)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Col. (Rtd) Dr. Besigye Kizza v Museveni Yoweri Kaguta and Another (Election Petition No. 1 of 2001)
  • James Sewaabiri and Another v Uganda (Criminal Appeal No. 5 of 1990)
  • Michael Mawanda v Electoral Commission and Another (Election Petition Appeal No. 98 of 2016)
  • Mutembuli Yusuf v Nagwomu Musamba Moses and Another (Election Petition Appeal No. 43 of 2016)
  • Kabuusu Moses Wagaba v Lwanga Timothy Mutekanga and Electoral Commission (Election Petition No. 15 of 2011)
  • Apolot Stella Isodo v Amongin Jacqueline (Election Petition Appeal No. 60 of 2016)
  • Pallock House Ltd vs Nairobi Wholesalers Ltd. (No.2) [1972] E.A. 172
  • Eddie Kwizera v Attorney General and Another (Constitutional Petition No. 20 of 2018)
  • Betty Muzanira v Winnifred Masiko and 2 Others (Election Petition No. 65 of 2016)
  • Edward Byaruhanga v Daniel Kiwalabye (Civil Appeal No. 2 of 1998)
  • Magara Ramathan v Uganda (Criminal Appeal No. 146 of 2009)
  • Kyagulanyi Ssentamu Robert v Yoweri Kaguta Museveni and 2 Others (Miscellaneous Application No. 4 of 2021)
  • Bakaluba Peter Mukasa v Nambooze Betty Bakireke (Election Petition Appeal No. 4 of 2009)
  • Mbayo Jacob Robert v Electoral Commission and Another (Election Petition Appeal No. 7 of 2006)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
  • Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 16 of 2016)
  • Hon. George Patrick Kasajja v Frederick Ngobi Gume and Electoral Commission (Election Petition Appeal No. 68 of 2016)
  • John Baptist Kakooza v Electoral Commission and Another (Election Petition Appeal No. 11 of 2007)
  • Namboowa Rashida v Bavekuno Mafumu Godfrey Kyeswa and Another (Election Petition Appeal No. 69 of 2016)
  • Francis Babu v Erias Lukwago (Election Petition No. 10 of 2006)
  • Musinguzi James Garuga v Ainama Mbabazi and Electoral Commission (Election Petition No. 3 of 2001)
  • Betuco (U) Ltd and Another v Barclays Bank of Uganda Ltd and 3 Others (Civil Appeal No. 1 of 2017)
  • Ninsiima Grace v Azairwe Dorothy Nshaija Kabaraitsya and Electoral Commission (Election Petition Appeal No. 5 of 2016)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Jugnauth v Raj Direvium Nagaya Ringadoo [2008] UKPC 50
  • Kikulukubyu Faisal v Mwanga Kivumbi Muhammed (Election Petition Appeal No. 44 of 2011)
  • Paul Mwiru v Igeme Nathan Nabeta Samson and Electoral Commission and Another (Election Petition Appeal No. 6 of 2011)
  • Ben Martin Wanda v The Electoral Commission and Michael Werikhe Kafabusa (Election Petition Appeal No. 81 of 2016)
  • Fred Badda v Prof. Muyanda Mutebi (Election Petition Appeal No. 21 of 2007)
  • Kasirye v Bazigatirawo and Another [2019] UGCA 457
  • Gaddafi Nassur v Sekabira Denes and Another (Election Petition No. 56 of 2021)
  • Odo Teyebwa v Nasser Bassaijabalaba and The Electoral Commission (Election Petition Appeal No. 13 of 2011)
  • Gole Nicholas Davis v Lois Kageni Kiryapawo (Election Petition Appeal No. 19 of 2007)

Full judgment

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Iddi Isabirye and Another v Electoral Commission and Another (Consolidated Election Petition Appeals Nos. 60 and 64 of 2021; Consolidated Election Petition Appeals Nos. 60 and 64 o
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